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PUBLICATIONS 



OF THE 



Public Park Association 






^^ 



L^NDS 



IN THK 



Wooiiasquntiicket Yallev. 



PROVIDENCE : 

PKOVIDKNCK PRESS COMPANY, PHINTERS, 

1884. 



REPORTS 



RELATINO TO THE TITLE OF THE STATE 



CERTAIN LANDS 



WOONASOUATUCKET VALLEY, 



AND ESTABLISHING BOUNDARY LINE BETWEEN THE CITY OF 
PROVIDENCE AND THE TOWN OF NORTH PROVIDENCE. 



jx iv/v-fu- \i^v'v^ vv-r 



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PROVIDENCE : 

PT'BLISHED BY THE PUBLIC rAP.K ASSOCIATION. 

1884. 



PRINTED BY THE PROVIDENCE PRESS COMPANY. 



REPORT 



JOINT spp:cial committee on the title of the state to 

LANDS IN THE WOONASQUATUCKET VALLEY. 



To tJte HonorabJe the General As.sei)ih/i/, at the May session ^ at 
JSTea'port, A. D. 1859 ;— 

The undersigned, appointed a joint special connnittee by the 
General Assembly, at its January session, 1859, with instructions 
to report to the present May session of the General Asseml)ly, 
what ri,o;hts the State may have in the lands embraced in the act 
establishing the l^oundary line between the city of Providence and 
the town of Xorth Providence, along a portion of the Woonasqua- 
tucket river, and to provide for the straightening of 'said river and 
line ; and also what rights any individuals may have in said lands ; 
how and in what manner said rights are ailected by said act, and 
any other facts relating to the right, title, or interest of the State 
in and to said lands, and any other lands in the Woonasquatucket 
valley, together with their opinions thereon, respectfully ask leave 
to make the following partial 

EEPORT. 

The members of the conmiittee met in the sheriff's oifice, in 
Providence, on the 2d day of April, 1859, and organized 1)y the 
election of Sullivan Ballon, chairman. Subsequently, the com- 
mittee have had several meetings in th(; Senate chamber, in Prov- 
idence, at which all persons interested were publicly notified to 
appear and be heard. 

In pursuing their investigations, the committee thought their 
attention should be first directed to the interest and claims of the 



State; as, if the State had no valid claim or valuable interest in 
the lands in question, the examination into the respective private 
rights of the individual owners of the lands, would not only be 
more properly left to the courts, but would l)e entirely useless to 
the State. In order to facilitate their examination into the public 
records, legal authorities, and historical facts, with Avhich the whole 
question was surrounded, and make it more thorough than it could 
be made l)y the whole committee, without great labor and expense, 
a sub-committee, consisting of Jerome B. Kimball, Arthur M. 
Kimball and Sullivan Ballou, was appointed, to make the necessary 
investigation. The results of that investigation were afterwards 
presented to the committee by the Attorney General, in an argu- 
ment advancing and supporting the claim of the State, to the fee 
of all lands in the Woonasquatucket valley covered by tidewater; 
and were answered by James M. Clarke, Esq., City Solicitor of 
the city of Providence, who appeared for the city, said city being 
not only a thatch-bed proprietor, but interested in other lands 
embraced in the terms of the resolution, which were tilled in by 
the city in the winter of 1857—S, 

Your committee do not deem it necessary to make a full report 
upon the title of the State to the lands emljraced in the resolution 
appointing the committee . Should your honorable body, however, 
see fit to sanction the conclusions of your committee as hereinafter 
expressed, they will hereafter present in full their opinions and 
conclusions thereon, together with the historical and legal author- 
ities upon which those opinions and conclusions are based. 

In the early history of our colony, when the grass that grew in 
the salt marshes was deemed more valuable for agricultural pur- 
poses than at the present day, it was customary to set off to the 
purchaser of upland, a small portion of the marsh l)clow high 
water mark, where the salt grass grew, as his "thatch-right," where 
he was to have the exclusive right to cut the thatch or salt grass. 
These thatch-rights, which were originall}' mere easements, and 
not grants of the soil, have come down to their present owners by 
purchase and descent, in quitclaim and warranty deeds. 



Your committee have no hesitation in declaring that, whatever 
may l)e the equitable rights and claims of the thatch-bed proprie- 
tors, the State has the legal title to the fee of the land. Accord- 
ing to the rules of common law, the title to all lands under tide 
water is in the sovereign, and cannot pass from him without 
express grant ; and no where in the history of the sovereign power 
of this State, whether in the General Assembly, Colonial Legisla- 
ture, or the King, has the sovereign power ever divested itself of 
its title to land under tide waters. And though some of these 
thatch-l)eds, even as early as the Colonial times, were conveyed 
with a warranty of title, yet it seems indisputable to the under- 
signed, that all the thatch-bed proprietors have ever acquired from 
the State or the sovereign power, is a prescriptive right to cut the 
thatch, without any right or claim in the soil. If the thatch is 
destroyed, and the premises devoted to other uses than the growth 
of thatch, the prescription is gone, and the title of the State is full 
and perfect. 

What equitable considerations, however, should govern the Gen- 
eral Assembly, in granting the fee in these lands to the thatch-bed 
proprietors, is a subject worthy of a more careful examination than 
your committee have hitherto been able to give it. But as near as 
your committee can noAV form an opinion, there are spaces between 
the several thatch-beds, where the thatch has never grown, and 
which do not belong to the thatch-beds proper ; to such land the 
thatch-bed proprietors cannot make even an equitable claim. But 
what may be the amount of such land to which the State unques- 
tionably has a clear title ; what may be the amount of land desired 
by the thatch-bed proprietors, and what may be the amount of land 
actually covered with thatch, your committee have not had the 
time to investigate. This, however, should be done, in order to 
legislate justly upon the rights of all parties. 

There is, also, a piece of land covered ])y the tide water, where 
there are no thatch-beds whatever, that your committee are aware 
of, to which there is no denial of the title of the State, comprising 
from 15 to 25 acres, Avhich may become of great value, and which 
ought to be preserved to the State. 



There is also another piece of land, comprising a number of 
acres, that was filled up by the city of Providence, in the winter of 
1857-8, in order to give employment to unemployed and destitute 
laborers. It has never been appropriated to railroad purposes, 
under the act of 1845, nor is there any claim to it, that your com- 
mittee are aware of, inconsistent with the title of the State. 

A thorough investigation into all these questions relative to these 
lands, would have been made l)y your committee, had there l)een 
sufficient time ; l)ut the magnitude of the interests involved, and 
the extent of the inquiry necessary to a clear elucidation of the 
whole matter, together with the shortness of the time between the 
January and the May sessions of the General Assembly, have pre- 
vented your committee making the whole investigation their res- 
olution of appointment directs. 

Your committee therefore recommend, that they be directed to 
continue their labors, with the same powers conferred in their 
resolution of appointment, and that they l)e directed to have sur- 
veyed and platted, for their own use and the use of the State, all 
the lands above the cove and under tide water, to which, in their 
opinion, the State has a title or claim, and to report at the next 
January session. They thereform recommend the passage of the 
followino; resolution : — 

Besolved, That the joint select committee, appointed at the hist January ses- 
sion of tlie General Assembly, to whom was referred the "Act to establish the 
boundary line between the city of Providence and the town of North Provi- 
dence, along a portion of the Woouasquatucket river, and to provide for the 
straightening of said river and line," with all the accompanying papers, be con. 
tinned to the next January session of this General Assembly, with the same 
instructions and powers given and granted in the resolution appointing said 
committee, and that they be directed to cause to be surveyed and platted all 
lands above the cove and below iiigh water mark, to wliich, in their opinion, the 
State has any legal claim or title, and that they be directed to report to the next 
January session of this General Assembly. 

SULLIVAN BALLOU, 
^Y. H. S. BAYLEY, 
GEO. MANCHESTER, 
WILLIAM A. PIECE, 
JEKOME B. KIMBALL, 



. REPORT 

Of tlte Joint Special Committee appointed by the Hon. Genera} 
jisHemhlij, at its January Session, A. D. 1859, to take into 
consideration "^l>i Act to establish the boundari/ line beticeen 
the city of Proridence and tlte toim of NortJi Providence, along 
a portion of tlie Woonasquatacket River, and to j)rovide fn- the 
straightening <f said river on said line, (t'c." 



The undersigned, a Joint Special Committee, appointed liy the 
Hon. General Assembly, at its January session, A. D. 1859, to take 
into consideration "An act to estal)lisli the boundary line l^etween 
the city of Providence and town of North Providence, along a por- 
tion of the Woonasquatucket River, and to provide for the straight- 
ening of said river on said line,'" and all the papers accompanying 
the same, with instructions to re[)ort what rights the State may 
have therein, what rights any individuals may have therein, how 
and in what manner the said rights are affected by said act, and 
any other facts relating to the right, title, or interest of the 
State, in and to said lands, and any other lands in the Woonasqua- 
tucket valley ; and at the May session of said General Assembly, 
A. D. 1859, continued with the same instructions and powers, and 
with directions to cause to be surveyed and platted, all lands 
above the Cove, and below high water mark, to w^hich, in their 
opinion, the State have any legal claim, respectfully represent that 
they have endeavored to perform the duties assigned them. 

For an account of the meetings of the conunittee, and the pub- 



lie notices thereof, before the last May session of the General 
Assembly, they beg leave to refer to the partial report of the com- 
mittee at that session. 

After the May session, the meetings and investigations of the 
committee were suspended till after the September term of the 
Supreme Court in the county of Providence, in order to accommo- 
date the Attorney General, on whose able and efficient services, 
in aid of the committee, great reliance had been placed. But, at 
the time when the committee were expecting to meet for a 
thorough investigation of the subject matter referred to them, the 
Attorney General was taken seriously ill, and the labors of your 
committee thrown into confusion. It may not be necessary to 
mention the serious difficulties under which your committee have 
since labored, by this breaking up of their organization ; but the 
.delay which has occurred in the presentation of this report, and 
much of its incompleteness, are owing to that cause. 

When, however, it was found that the recovery of the Attorney 
General could not be expected in time to participate in the labors 
of the conniiittee, they reluctantly commenced anew their investi- 
gations, and gave public notice of a hearing of all parties inter- 
ested, to be had on the 5tli of January, 1860, at the State House, in 
Providence ; and held adjourned meetings for the same purpose, 
on the 11th and 18th of the same month. All parties who desired 
a hearing, were heard, and their claims considered. And all the 
light that your committee are able to throw on the subject, and 
their conclusions thereon, are embodied in the following final 

KEPORT. 

That portion of the Woonasquatucket River extending from near 
the village of Olneyville to a point near where the river em}jties 
into the Cove, west of the State Prison, forms a part of the bound- 
ary line between the city of Providence and the town of Xorth 
Providence. The channel of the river between the points named, 
is very circuitous, and the valley through which the river there 
runs, is wide, low and marshy. The ebb and How of the tide 
extends the whole distalice. 



9 

The filling up of the Cove, for railroad purposes, so greatly ben- 
efitting and improving the city of Providence, has brought these 
salt marshes in the A^'oonasquatucket valley into close proximity 
with the centre of the city. — added nuich to their value and im- 
jiortance, — and stimulated those who have an interest in, or title 
to those lands, to fill them up. and use them for purposes of im- 
provement. 

At the January session of the General Assembly, 1858, Stephen 
Eandall, Sanmel B. Cushing and William H. Cook, were appointed 
commissioners to establish lines on each side of the AVoonasqua- 
tucket River, between tlie city of Providence and the town of 
North Providence, and below tide water. u[) to which the proprie- 
tors whose lands abut upon the said river, may properly fill in the 
same, and to mark the said lines by suital)le monuments ; and 
authorizing said commissioners to ascertain, mark, plat, and fix the 
boundary line between said city of Providence and the town of 
North Providence, upon the said river, and to change the line and 
straighten the river in their discretion. • 

At the May session of the General Assemldy, 1858, said com- 
missioners reported the bill now under consideration, and recom- 
mended its passage. 

The undersigned have not deemed it necessary to extend their 
investigations to the details of the l)ill referred to them. The 
object it is designed to accom})lish, and the manner in which it is to 
be reached, are plainly set forth in the l)ill itself. It authorizes 
the city of Providence and the town of North Providence to exca- 
vate a new and straighter channel for the Woonasqua tucket River, 
between certain })oints ; and whenever the town and city have made 
appropriations for that ])urj)ose, the work is to be done under the 
supervision of certain conmiissioners thercnn named. The bound- 
ary between the city and town, is (lien to I)e the centre of the new 
river. Two streets are also to be laid out, — one on each side of 
the new channel. There is no provision in the bill, that the new 
channel shall be properly walled. After completing the channel 
and streets, the commissioners are to survey and plat all estates 
2 



10 

required for such improvements and benefited thereby, and make 
an estimate of the value of the property required, and tlie benefits 
conferred ; and, also, make a just and equitable assessment and 
estimate of the loss and damage over and above the Ijenefit and 
advantage ; and the benefit and advantage over and above the loss 
and damage occasioned by all the improvements ; and shall appor- 
tion the loss, damage and expense upon the persons and estates ben- 
efited. The assessors of taxes in the city and town, are to add the 
benefits and advantages to the taxes assessed against the estates 
respectively ; and the amount is to be collected the same as other 
taxes, and paid into the treasury of the State, — and from thence it 
is to be drawn by the commissioners, to reimburse the town and 
city for their expenditures, and the property owners for their loss 
and damage. 

Section 6th of the bill, however, is as follows : " Sec. 6. That 
the State of Rhode Island hereby release to the respective owners 
of the thatch rights in the Woonasquatucket valley, on both sides, 
and to the middle of said old river, as delineated on said plat, up 
to within fifty feet of the line of said new river, as proposed and 
delineated on said plat, all their right, title and interest therein ; 
and the said owners shall have the right to fill up the same, for 
their benefit respectively ; and said commissioners are authorized 
to make out and delineate, on said plat, the several portions of 
said river bed and thatch rights, so released to said riparian pro- 
prietors, and to establish the division lines between the several 
portions of the same so released, by the State, to the several pro- 
prietors." 

Your committee have devoted their attention exclusively to this 
section, as involving the whole cause of their appointment ; and as 
eml)racing the whole subject on which the legislature desired 
information. 

According to the instructions given the committee at the last 
May session of the General Assembly, they have caused a plat of 
the premises to be made, representing the line of ordinary high 
-water mark, and with the addition of those lands next north-west 
of the Cove, lately filled in by the Hartford, Providence & Fishkill 



11 

Eailroad Company and the city of Providence, and the lands filled 
in by certain riparian owners. On this plat, (herewith submitted) 
the outside, deep blue lines represent ordinary high water mark. 
The light blue coloring represents the tide-water ; the green color- 
ing represents the thatch grass, and the yellow coloring represents 
the made land. The dividing lines between the thatch-beds, are 
understood to be the lines agreed upon or recognized b}'^ the thatch 
bed proprietors. The white, or uncolored portion of the plat, 
represents the upland ; and all the colored portions are now, or 
were formerly, (before being filled in,) below ordinary high water 
mark. The first question, therefore, that naturally presented 
itself at the opening of the investigation, was as to the title of 
this State to lands below ordinary high water mark. 

The grand and fundamental maxim of that feudal tenure intro- 
duced into England by William, the Conqueror, and afterwards 
adopted 1)y the Norman Barons, and assented to by the great 
Council of the English nation, was, that all lands were originally 
granted out by the sovereign ; and were, therefore, held either 
mediately or innnediately of the crown. ^ 

And not only was this principle extended to all real property, 
but it was the policy of the common law, to assign to everything, 
capable of occupancy and susceptible of ownership, a legal and cer- 
tain proprietor : and, accordingly, made those things which, from 
their nature, could not ])e exclusively occupied and enjoyed, the 
property of the sovereign. ^ 

To the King of England, therefore, was assigned not only the 
sovereign dominion of the sea adjoining the coasts, and over the 
arms of the sea, l)ut in him, also, was vested the right of property 
in the soil thereof. ^ 

It was resolved, in the case of the Royal Fishery, of the Viver 
Banne, in Ireland, that the sea is not only under the dominion of 
the king, but it is also his proper inheritance. And all ports and 
havens which are ostice et Januce re^/ni, appertain to the king, 
because he is the guardian of the whole realm.-* 

1. II. Blackstone's Commentaries, 53. 3. lb. 20. 

2. Angell on Tide-waters, 19. 4. Davies' Reports, 149. 



12 

In the case of the Attorney General vs. Richards, in the 
Exchequer, the information stated that, liy the royal prerogative 
the sea and the sea coasts, and as far as tlie sea flows and reflows 
between high and low water marks, and all the ports and havens of 
the kingdom, ))elong to His Majesty, and ought to bo preserved 
for the use of His ^Majesty's vessels and^ others ; and that His 
Majesty has the right of superintendency over them, for their pre- 
servation.! 

Concerning the introduction and application of the common law 
on this subject, in this country, Mr. Angell, in his work on Tide- 
waters, and the authorities there cited, thus clearl}' speak :~ " The 
territory discovered, acquired and possessed by the early English 
emigrants to North America, though properlj' no part of the reahii 
of England, was yet a part of its roijalti/, or of the dominions 
belonging to it. The emigrants considered themselves as British 
subjects, and acted in that character. In the association held at 
Cape Cod, by the lirst of those who settled New England, on the 
11th of November, 1620, they acknowledged themselves the loyal 
subjects of King James. -^ They, moreover, took possession of the 
country in the name of the King, and made war, by his authority, 
with the Indians. Seeking the protection, also, of their native 
kingdom, they acknowledged and adopted the English common 
law, in so far as it was applicable to their situation. The common 
law was, in fact, imiKH'ted by all the English colonists :■* was 
sanctioned both by royal charters and colonial statutes, and was, 
subsequently, claimed by the congress of the United Colonies, as a 
branch of those indubitable rights and liberties to which the re- 
spective colonies were entitled.'' The fundamental principle of 
the common law, derived from the maxim of the feudal tenures, 
that the king was the original proprietor, or lord paramount, of all 
the land in the kingdom, and the only source of title continued to 
be recognized, until it was applied to our independent republican 
governments.*^ The rights of the crown devolved on the States 

1. I. Aiistnitliors' Kuports, (it)«. :i. CluUmers' Opinioiit;, 10','. 

2. Angi'll on Tide-waters, 30. 1. I. Keut's Coniiiientnric!i, 473, 343. 
5. Dec. of Kiglits, of Oct. H, 1774; Jourual of Congress, Vol. I , p. 28. 

C. III. Kent's Commentaries, 377. 



13 

by the Revolution ; and by the treaty of peace, were confirmed to 
them in their sovcrign capacity.^ Hence, it is apparent that, 
originally, not only the jurisdiction of the British sovereign 
extended over the territory acquired by the colonists, from the 
native occupants, l)nt, also, tlic same y^^s- j)roj)n'ef(ff/s, or right of 
pro})crty, in all the tide-waters included by such territory, existed 
in the crown, to the same extent as in the tide-waters of the realm, 
and were held, like the latter, subject to the public use ; and, con- 
sequently, the soil thereof could not be exclusively appropriated 
byany common individual or corporation. Those individuals, for 
instance, to whom [)arcels of land were assigned, without being 
specially empowered so to do by the sovereign power, could claim 
to be proprietors only to high water niark."- 

In the case of Storer vs. Freeman,"^ Chief Justice Parsons 
says : " By the common law of England, which our ancestors 
l)rought with them, claiming it as their birthright, the owner of 
land bounded on a fresh Wiiter river, owned the land to the center 
of the channel of the I'iver, as of common riglit ; but if his land 
wasljounded on the sea, or on any arm of the sea, where the tide 
eb1)ed andtlowed, he could not, by such boundary, hold any land 
l)elovv the ordinary low water mark ; for all the land l)elow 
belonged, of conmion right, to the king. 

In the case Commonwealth vs. Charlestown,* Chief Justice Par- 
ker says : "By the common law, it is clear that all arms of the 
sea, coves, creeks, &c., where the tide ebbs and Hows, are the 
property of the sovereign. And this right of the sovcrign extends 
to ordinary high water mark, so that the shore, which is the s})ace 
between high water and low water mark, belongs, also, to the 
sovereign ; the property of the owner of the upland. reaching only 
to that line which limits the waters in the ordinary course of the 
tides." 

In the case of Chapman vs. Kimball, s Justice Daggett says : 
"The doctrine of the conunon law is, that the right to the soil of 

1. I. Baldwin's (Circuit Court) Hcijorts, (iO. 

2. Coiuuioii\vi.'altli v.s. Cliarlcstovvii, I. Pic. (Mass.) Itcp., isu. 

:i. VI. Massaclmsetts Reports, i:i8. i. I. I'iclvfriiig's (JIass.) Keports, 182. 

5. IX. Connecticut Keports, 40. 



14 

the proprietors of land on navigable rivers, extends only to high 
water mark ; all below is public I juris — in the king of England. 
That is the law of Connecticut, for we have no statute abrogating 
it. It was the law brought by our ancestors, — it is our law ; the 
soil not being indeed owned by the king, but by the State." 

Our own early colonial history is full of the most express recog- 
nitions of the common law ; and to the present time, it has been 
preserved in this State in greater purity than in any other State 
in the Union. 

The charter that was granted b}^ the Earl of Warwick, and the 
commissioners, in 1643, to the towns of Providence, Portsmouth 
and Newport, was a "free charter of civil incorporation and gov- 
ernment," " with full power and authorit}^ to rule themselves and 
such others as shall hereafter inhabit within any part of said tract 
of land, by such a form of civil government as by voluntary consent 
of all, or the greater part of them, they shall find most suitable to 
their estate and condition : and for that end, to make and ordain 
such civil laws and constitutions, and to inflict such punishments, 
&c., as the inhabitants, or the greatest part of them, shall, by free 
consent, agree to ; provided, that said laws, constitutions, and 
punishments, for the civil government of said plantations, be con- 
formable to the laws of England, so far as the nature and constitu- 
tion of the place will admit." And at the general election, held in 
Portsmouth, in May, 1647, wJien the major piarf of the colony was 
present, they made and agreed upon an act, whereby they volunta- 
rily "assented to," and expressed themselves "freely willing to 
receive, and to be governed by, the laws of England, together with 
the way of the administration of them, so far as the nature and 
constitution of the plantation will admit."' 

So of the charter of 1663, which so Ions: remained the funda- 
mental law of the colony and state. It was granted by the king of 
England to his " loyal subjects inhabiting his island called Rhode 
Island, and the rest of the colony of Providence Plantations," upon 
the express condition, that all their laws, ordinances and consti- 

1. I. Colonial Records, (of R. I.) p. 147. 



15 

tutions, should not be contrary and repugnant to, but, as near as 
maybe, agreeable to the laws of this our realm of England ;" and 
accepted by the General Assembly, sitting atNew})ort, in March, 
1663-64, with " a declaration and record of their faithful allegiance 
forever, to be proposed and performed unto his said ^Majesty, his 
heirs and successors accordingly." And at various times, from the 
year 1700 down to 1760, the General Assembly adopted the 
principal statutes of England, relative to property and to the 
colony, from the statute of ]\Ierton down to the fourth and fifth of 
Anne c. 16 ; and still further providing that, where there was no 
law of the colony, the laws of England w^ere to ])e in force. • 

Assuming the principles of the common law, as laid down in these 
authorities, to be correct, and that they have generally been recog- 
nized in this colony, it would seem that no valid title to land cov- 
ered liy tide-water, could be acquired in this State, except from 
the soverign power. 

It is said by some, however, that the doctrines of the common 
law relative to the title to lands, have never l)een acknowledged 
and applied in this State ; in fact, that the whole policy of the 
colony and State has been opposed to them ; and that through 
Roger Williams, from the Indians, alone, is derived the only title 
to land that Rhode Island has ever acknowledged or confirmed. 

We are not surprised to find that the subject of the Indian title 
has long since been in controversy, in the courts of this country, 
and long since Ijeen settled. In 1823, the question " as to the 
powder of Indians to give, and of private individuals to receive, a 
title which can be sustained in the courts of this country," was 
brought before the United States Supreme Court, ^ and a learned 
and interesting opinion was given upon it by Chief Justice Mar- 
shall, deciding that a title to lands, derived solely from a grant 
made by an Indian tribe to private individuals, cannot be recog- 
nized in the courts of the United States. 

" It is very well known," says Mr. Angell, in his treatise on tide- 
waters, =^ "there are instances of grants made by the native In- 

1. Digest of 17C6, p. 55. 

2. VIII. Wheaton's (United States Sup. Court) Reports, 513. • 

3. Angell ou Tide-waters, 47. 



16 

dians, and before charters from the crown were conferred ; which 
grants embraced territory that included arms of the sea, so that a 
right of property therein, it has been supposed, was derived by 
the grantees independently of the crown. It was not at all unusual, 
at the period of the settlement of this country by European emi- 
grants, for them to purchase of the natives extensive territorial 
districts. Such purchases were, however, dictated by policy mere- 
ly, or M'ith the view of avoiding hostilities ; for the purchase made 
by William Penn, which Avas among the most remarkable transac- 
tions of this kind, was not supposed to augment the title he had 
acquired by discovery. All the treaties and negotiations, more- 
over, between the powers of Europe and the American continent, 
from the treaty of Utrecht, in 1713, to the treaty of Ghent, in 
1814, have uniformly recognized the principle just mentioned, and 
have utterly disregarded the sup})Osed right of the native Indians 
to the territory, within their asserted jurisdictional limits. Those 
natives were not regarded as forming civil comnuuiities, who had 
that fixed and permanent property in the soil which admits of 
alienation to private individuals. In the elaborately discussed 
case of De Armas vs. Mayor, &c., of New Orleans, ^ it was admit- 
ted to be uniformly the practice of all European nations, having 
colonial establishments and dominion in America, to consider the 
unappropriated lands occupied by savages, and obtained from them, 
by conquest or 2iurchase, to be crown lands, and capable of a valid 
alienation, by sale or gift of the sovereign, and by him only. No 
valid title could l)e acquired without letters patent from the king. 
It was declared, by the statute of Connecticut of 1718, that no 
title to land was valid unless derived from the governor and com- 
pany of the colony. AVhat, however, is completely decisive in 
respect to this matter, is the case ofJohnson vs. MTntosh, in the 
Supreme Court of the United States," (before cited). 

In that case, the eminent Chief Justice Marshall uses the follow- 
ing language : " The principle acknowledged as law, by all the Eu- 
ropean nations, and by which they regulate among themselves 

1. V. Miller's (Louisiana) Kcports, 132. 



17 

their discoveries and acquisitions upon this continent," was, "that 
discovery gave title to the government, hy whose subjects, or by 
whose authority it was made, against all otlier European govern- 
ments, whose title might be consummated ])y possession. 

" The exclusion of all other Europeans, necessarily gave to the 
nation making the discovery, the sole right of accpiiring the soil 
from the natives, and estab]ishin<>- settlements. 

" Those relations which were to exist between the discoverer and 
the natives, were to be regulated by themselves. The rights thus 
acquired, being exclusive, no other powder could interpose between 
them. 

"In the establishment of these relations, the rights of the oriiji- 
nal inhabitants were in no instance, entirely disregarded ; but were 
necessarily, to a considerable extent, impaired. ' They Avere ad- 
mitted to be the rightful occupants of the soil, with a legal as well 
as joint claim to retain possession of it, and to use it according to 
their own discretion ; but their rights to complete sovereignty, as 
independent nations, were necessarily diminished ; and their 
power to dispose of the soil at their own will, to whomsoever they 
pleased, was denied by the original fundamental principle, that 
discovery gave exclusive title to those wdio made it. 

" While the different nations of Europe respected the right of 
the natives, as occupants, they asserted the ultimate dominion to 
l)e in themselves ; and claimed and exercised as a consequence of 
this ultimate dominion, a power to grant the soil, Avhile yet in pos- 
session of the natives. These grants have been understood by all, 
to convey a title to the grantees, sul)ject only to the Indian right 
of occupancy. 

" The history of America, from its discovery to the present day, 
proves, we think, the universal recognition of these principles.' 

"Another view has been taken of this question, which deserves 
to be considered. The title of the crown, whatever it might be,, 
could be acquired only by a conveyance from the crown. If an 
individual might extinguish the Indian title for his own benefit, or, 
in other words, might purchase it, still, he could acquire only that 
3 



18 

title. Admitting their power to change their laws or iisnge.s, so 
far as to allow an individual to separate a portion of their lands 
from the common stock, and hold it in severalty, still, it is a part 
of their territory, and is held under them, l)y a title dependent on 
their laws. 

" The grant derives its efficacy from their will ; and if they choose 
to resume it, and make a diflerent disposition of the land, the 
courts of the United States cannot interpose for the protection of 
the title. The person who purchases lands from the Indians, 
within their territory, incorporates himself with them, so far as 
respects the property purchased, holds their title under their pro- 
tection, and subject to their laws. If they annul the grant, we 
know of no tribunal which can revise and set aside the proceedings. 
We know of no principle which can distinguish this case from a 
grant made to a native Indian, authorizing him to hold a particu- 
lar tract of land in severalty." 

Chief Justice Marshall, after reasoning thus upon the principles 
of law applicable to Indian titles, proceeds to strengthen the argu- 
ments on which the opinion of the court is based, by reference to 
the history of several of the older colonies ; and among others, 
he thus alludes to Rhode Island : ' 

'' Much reliance has also been placed on a recital contained in 
the charter of Rhode Island, and on a letter addressed to the gov- 
ernors of the neighbornig colonies, by the King's command, in 
which some exin-essions are inserted, indicating the royal appro- 
bation of titles acquired from the Indians. 

"The charter to Rhode Island recites: 'That the said John 
Clark, and others, had transplanted themselves into the midst of 
the Indian nations, and were seized and possessed, by purchase 
and consent of the said natives, to their full content, of such 
lands,' &c. And the letter recites, 'That Thomas Chaffinch and 
others, having in the right of Major Asperton, a just proprietary 
in the Narragansett country, in New England, by grants from the 
native princes of that countr}-, and being desirous to improve it 
into an English colony,' &c., 'are yet daily disturbed.' 

" The inii)rcssion this language might make, if viewed apart 



19 

from the circumstances under which it was employed, will be 
eliaced^ Avhen considered in connection with those circumstances. 

"In the year Ifioo, the Plymouth Company surrendered their 
charter to the crown. About the same time, the religious dissen- 
sions of Massachusetts, expelled from that colony several societies 
of individuals ; one of which settled in Rhode Island, on lands pur- 
chased from the Indians. They were not Avithin the chartered 
limits of Massachusetts, and the English government was too much 
occupied at home, to bestow its attention on this subject. There 
existed no authority to arrest their settlement of the country. If 
the}^ obtained the Indian title, there were none to assert the title 
(>f the crown. Under these circumstances, the settlement became 
considerable. Individuals acquired separate property in lands 
which they cultivated and improved ; a government was estab- 
lished among themselves ; and no power existed in America which 
could rightfully interfere with it. 

"On the restoration of Charles II., this small society hastened 
to acknowledge his authority, and to solicit his confirmation of 
their title to the soil, and to jurisdiction over the countr3^ Their 
solicitations were successful, and a charter was granted to them, 
containing the recital which has been mentioned. 

"It is oljvious that this transaction can amount to no acknowl- 
edgment, that the Indian grant could conve}" a title paramount to 
that of the crown, or could in itself constitute a complete title. 
On the contrary, the charter of the crown was considered as indis- 
pensable to its completion. 

"It has never been contended that the Indian title amounted to 
nothing. Their right of possession has never been questioned. 
The claim of government extends to the complete ultimate title 
charged with this right of possession, and to the exclusive power 
of acquiring that right. The object of the crown was to settle the 
sea coast of America ; and when a portion of it was settled, with- 
out violating the rights of others, by persons professing their loy- 
alty, and soliciting the royal sanction of an act, the consequences 
of which were ascertained to be beneficial, it would have been as 
unwise as ungracious, to expel them from their habitations, because 



20 

they had obtained the Indian title otherwise than tlii'ough the 
agency of government. The very grant of a charter is an asser- 
tion of the title of the crown, and its words convey the same idea. 
The country granted is said to be 'our island called Rhode 
Island;' and the charter contains an actual grant of the soil, as 
well as of the powers of government. 

" The letter was written within a few months before the charter 
was issued, apparently at the request of the agents of the intended 
colony, for the sole purpose of preventing the trespasses of neigli- 
l)ors, who were disposed to claim some authority over them. The 
King being willing himself to ratify and confirm their title, was, 
of course, inclined to quiet them in their possession. 

"The charter and this letter certainl}^ sanction a previous unau- 
thorized purchase from Indians, under the circumstances attending 
that particular purchase ; but are far from supporting the general 
proposition, that a title acquired from the Indians ivould be valid; 
against a title acquired from the croum, or unthout the confirmation, 
(ftlte crown. 

"The acts of the several colonial assemblies, prohibiting pur- 
chases from the Indians, have also been relied on, as proving that 
independent of such prohibitions, Indian deeds would be valid. 
But we think this tact, at most, equivocal. While the existence 
of such purchases, would justify their prohibition, even by colonies 
which considered Indian deeds as previously invalid, the fact that 
such acts have been previousl}'" passed, is strong evidence of the 
general opinion that such purchases are opposed by the soundest 
l)rinciples of wisdom and national policy." 

Judge Washington, iu the case of Worcester vs. the State of 
(leorgia, thus speaks of the relations between the Indians and the 
United States -A " At no time has the sovereignty of the country 
been recognized as existing in the Indians, but they have always 
been admitted to possess many of the attributes of sovereignty. 
All the rights which belong to self governmcfnt have been recog- 
nized as vested in them. Their right of occupany has never been 

1. I'oters (U. S. Sup. Ct.) Rt'iiorts, 580. 



21 

questioned, but the fee of tlie soil has been considered in the gov- 
ernment. This may be called the right of ultimate domain, but 
the Indians have the present right of .possession." 

Such are the decisions and such th(^ -language of the United 
States courts, upon the suT)ject of the Indian title. 

To this, it has been replied, that it is sul)versive of one of the 
principles on which Rhode Island institutions Mere founded, and 
contrary to the policy that Rhode Island has ever pursued. 

Roger Williams was indeed a friend of the Indian race, and 
always a defender of their rights ; and so far as his power and 
intiuence extended in the formation of this colony, he shielded them 
from wrong and op})ression from the whites. Before his banish- 
ment from ^Massachusetts Bav, he maintained, that "an Eno-lish 
})atent could not invalidate the rights of the native inhabitants. 
The opinion sounded at first like treason against the cherished 
charter of the colony. Williams desired only that the offensive 
manuscript might be burned ; and so effectual 1)^ ex})lained its pur- 
l)ort, that the court ap})laudcd his temper, and declared that the 
motives were not so evil as at first they seemed. ^ 

We have not been a])le to ascertain what the course of argu- 
ment was in that manuscri})t. But the |)osition that an English 
patent cannot invalidate the rights of the native inhabitants, is by 
no means in conflict with the law since laid down by the United 
States Supreme Court. The Indians undoubtedly had rights in 
the soil of this country : and it was not only wise and prudent in 
the early settlers to purchase their title, whatever it might be, but 
it Avas what law and justice demanded they should do. And 
l)ecause Roger Williams always generously acknowledged their 
right of possession, not only by purchasing the tribe lands of the 
sachems themselves, but in cases where Indians were in actual occu- 
l)ation of some of those very lands thus purchased of the sachems, 
by compensating them also for tlicii" removal, he won the love and 
reverence of the red men, and became the means of preserving the 
colonies in New England from indiscriminate slaughter and exter- 
mination. 

1. ISaiicroft's llistorv ol" the rnitcd StiUcs, .%<). 



22 

That Roger Williams claimed that the Indians had any thing- 
more than a right of occupancy in the soil, from the account of the 
historian above quoted, may l)c well dou1)ted. It was not the char- 
acter of the man to retract his principles, once promulgated, or to 
modif}^ them to suit the Court of Massachusetts Bay ; and if he 
really denied to the crown those rights of discovery which the laws 
of nations gave, it does not seem probable he could have explained 
his views so that the court should have applauded his temper, 
and have declared that his views were not so evil as at tirst they 
seemed. Xor that he would afterwards have joined in solicitins^ 
from the English crow^n the charter, that not only acknowledged 
and confirmed his very purchases from the Indians, but clearly 
conveyed the lands themselves. It does not seem inconsistent 
with his character and his history, to say, that all Roger Williams 
claimed for the Indians, was, simply a right of possession, w^hich 
the colonic* themselves, under an English patent, could not 
extinguish, without the consent of the Indians ; and such a claim 
certainly was not inconsistent with the common law. 

Before examining into the Thatch bed titles, (so called), and 
also what has been the local legislation of the colony and state, 
affecting the title and soil under tide- water, it may be well to pre- 
mise, that the result of the establishment of the independence of 
the colonies, upon the prerogatives and rights of the crown, was 
to transfer them all to the sovereign power of the state. Our 
charter and form of government still remsuned the same ; and what- 
ever y^«'rt regalia, or sovereign power the king held and enjoyed 
in regard to the colony, passed at once upon the independence of 
the colony, to the state. 

Mr. Angell, in his work on Tide Waters, (page 44) says ; "It 
has ever, to this day, in fact, been considered, that wdien the revo- 
lution took place, the people of the several original states became 
themselves sovereign ; and that in that character, they held the 
ab.solute right to all their tide waters, and the soil under the same, 
for Iheir own connnsn use." 

In a memorandum of a deed, by Canonicus and Miantonomo to 
Roger Williams, in March, 1637, in confirmation of a sale to 



23 

Williams two years ])efore, and which was the first purchase of 
the Indians by Williams, the lands are described as " ye lands and 
meadoes vpon the two fresh rivers called INIooshausick and Wan- 
asqutucket," bounded " trom ye river and fields at Pautukqut, ye 
great hill of Notquonckaiuit on yc north-west, and ye town of 
Marshapague on ye west ; " and in the memoranda afterwards made 
by Williams himself, and also in his grant to his twelve associates, 
the lands are spoken of as the lands and meadows on these two 
fresh rivers. 

The deed of Williams to his associates gave them, "and such 
others as the major part of us shall admit into the same fellowship 
of vote with us, equal right and power of enjoying and disposing 
of the same grounds and lands." This was the commencement of 
the proprietors of the Providence Purchase. 

In those earl}- times, when but little meadow land was reclaimed, 
when corn stalks and the salt marsh grass were almost the only 
fodder for cattle, the salt marshes in the Cove and the Woonas- 
(|uatucket valle}' were considered of great value. To those of the 
proprietors, therefore, who owned, or subsequently purchased a 
certain amount of upland, was appropriated or conveyed the right 
to cut a certain amount of thatch, or salt grass. To those who 
had only half the standard amount of upland, was allowed half the 
amount of thatch. These privileges of cutting soon ))ecame 
known as "thatch rights," and were enjoyed by the proprietors in 
conunon. 

In the course of fifty or sixty years, however, it was found 
necessary to make out and define these rights of common. Prob- 
ably some of the thatch-right owners would cuttheir thatch sooner 
than others, and, obtaining more than their proportion, thus 
deprive the last of any at all ; or, perhaps the thatch, varying in 
quality, there was strife about claiming the best ; or, perhaps 
some miffht claim a better right to cut in sonn^, locatities than 
others. At all events, on the 27th of July, 1704, at a town meet- 
ing of the town of Providence, the proin-ielors ap})ointed a com- 
mittee " to consider the l)est method of apportioning the thatch- 



24 

grass, so that those having rights of common should take only in 
proportion as they own purchases." 

In searching among the old original papers, now in the care of 
the Historical Society, and in what has l)een known as the "Indian 
Bag," your committee found the following original report to the 
town meeting of the town of Providence, July 27, 170G : 

"To THE Town Mutt thk 27 July 170C. 

" Geat we whose uames here hereuuto subscribed being by the town chosen 
& appointed to take survej^ of all the common Tliatch Beds belonging to the 
Town of Providence & to malie such equal division thereof that each proprietor 
may know ills certain proportion therein. And in order thereunto we have 
according to the best of our judgment both taken a survey and made division of 
the same (as will more at large appear by our return-). But we finding such 
disproportion in the Quality of the beds that an equal quantity would in no 
respect make an equal division, were therefore forced to act more by our judg- 
ments than by rule, and so we cannot be certain that the divisions are just, and 
therefore our opinions are that it may be convenient for the town to continue us 
impowered in the business until such times as there may be some trial had of our 
work, or else to appoint some other persons in our stead to make such altera- 
tion as may be thought needful for the more eftectual accomplishment of an 
equality in the Division. 

"And Gents we must beg leave further to inform you that we are also of 
opinion that there is one thing more which will be very essential to the com. 
pleating of a full equality in this affair, and tliat is that the town at this meeting 
do take care that we may be paid for our trouI)le and labor in the above said 
business which will oblige us who are your friends and neighbors. 

WILLIAM HOrivINS, 
JOSEPH JENCKES, Junior, 
THOMAS OLNEY. Jun., 
JAMES BROWNE, 
JAMES OLNEY." 

In the town meeting records of the same date as this report, we 
find that it was ordered that "those persons who are chosen and 
ordered to divide the thatch beds, shall appoint who, and how 
many, of the proprietors shall be and belong to each particular 
part of the thatch bed already set out by the said dividers, and 
the same to commence this year, by the particular companies 
together, — eacli their part, — and no person to begin to mow until 
the first Tuesday in September." 



25 

It was aho voted, at the same meeting, "That the proprietors 
shall come tog-ether on the 17th of August next, at Turpin's house, 
and there to be informed, by the dividers, in what part of the 
tliatch beds each company's part shall be, and where each one's 
share shall fall to be ; and, also, that they do, at the said house, 
come together on the IGth day of August next, to give an account 
to the dividers from whose orii>inal rioht their claim to the thatch 
l)ed was derived, and how nmch their claim is ; and every share of 
thatch bed shall be divided out to each particular person who are 
proprietors, according to their proportion." 

These arc the only measures known to your committee to have 
l)een taken by the proprietors, or the town of Providence, in rela- 
tion to the thatch beds. Undoubtedly, the directions of that town 
meeting were carried out. The proprietors showed to the dividers 
under whose original I'ight they claimed, and the dividers, class- 
ing them in certain divisions, marked the division lines and the 
l)ounds of their individual ri":hts. 

There being, therefore, no further occasion for collision or dis- 
pute in the enjoyment of these rights of common, each continued 
to occupy and enjoy his apportionment. 

On the 14th day of May, 1714, some of these divisions appear 
to liave been recorded. ^ The others, probably, never Avere. 
There was found, however, a few years since, among the papers of 
the late Moses Brown, a copy of an old paper, purporting to be a 
complete list of this partition of the whole of the thatch beds, and 
to whom made. This paper is said to correspond entirely with 
these divisions whicli are recorded, and probably, in most instances, 
agrees with the subsequent conveyances of these rights from indi- 
viduals, as they stand on the town records.- 

These thatch rights, in the first instance, were mere easements, 
appurtenant to the upland purchases ; n'r/hts of common, hckl and 
enjoyed as such, without any claim of right to the soil. In the 
same deed of the transfer of the upland, whether it was a warranty 

1. Town Meeting Records, Book 1., page 107. 

2. Vide Report of City Soli.itor on Thatch Ueds, Dec. 12, liJ.W. 



"26 

or a quitclaim deed, the thatch right was generall}' mentioned as a 
right of common. After the division in 1707, the rights were gen- 
erally described, not by metes and bounds, l)nt by the surround- 
ing thatch-right owners. Then, upon the continued conveyance 
and subdivision of the original purchases of upland, and when it 
was no longer possible to continue the subdivision of the thatch 
rights, from the insignificance of the amount and its depreciation 
in value, they were separated from the ui)land propriety, to which 
they were origintdly appurtenant, and conveyed by themselves. 
Finally, the land itself, which the thatch bed occupied, was con- 
veyed by warranty deed, and often in these somewhat paradoxi- 
cal terms, — "a certain lot of land situated in the Cove," &c., 
"called a thatch right." 

At what particular periods such changes in the mode and man- 
ner of the conveyance of these rights occurred, it is impossible 
for your committee to tell. The records of deeds have been almost 
the only source of knowledge your committee have possessed ; 
and a full examination of these would require months of diligent 
research. 

Considering that in those early times, the marshes where the 
thatch grew were almost as valuable as the upland, it seems sur- 
prising the original proprietors should set off to themselves mere 
easements or rights to cut the thatch, which they were to enjoy in 
common, and not lay out and convey the soil itself, if they claimed 
or believed they held the fee. But, at the outset, they recognized 
the line of distinction which the common law makes between firm 
lands and lands covered by tide-waters ; the former became private 
property, and the title to it from the king, afterwards acquired 
through the charter of Charles II. and the act of 1682 ; and the 
latter was not originally conveyed in fee, but occupied by all 
proprietors in common. Whether they acknowledged the conmion 
law title of the crown to tide-waters, — that is, a title in fee in the 
crown, subject to those inherent privileges of the public to the fish- 
ing, navigation, and enjoyment of the sea and its products, or held 
that they themselves were a body politic, clothed with sovereign 



27 

power, and with all its incidents and appurtenances — in either 
case, they seemed to have declined to convey in fee — to be held in 
severalty — lands which, under th(> law of England, were held l)y 
the sovereign power in trust for the public. 

Recurring to the su]))ect of the title of the crown to lands cov- 
ered by tide-waters, it is essential to inquire how, and by whom, 
the title to such lands in this State has been acquired. 

It was, also, a rule of the common law, that the king can only 
give by matter of record ; therefore, the king's grants are con- 
tained in charters or letters patent, under the great seal, which 
are usually directed or addressed to all the king's subjects;^ and 
in the construction of a royal grant, it shall not enure to any other 
intent than that which is precisely expressed in the grant. - 

The only charter ever emanating immediately from the king to 
the colonists of Rhode Island, was that of 1663. 

The charter of 1643, as is well known, was an act of incorpora- 
tion for the purposes of civil government, granted to the colonists 
by the Earl of Warwick, who had been constituted, by Parliament, 
Governor in Chief and Lord High Admiral of all those islands and 
plantations inhabited or planted by, or belonging to, any of His 
Majesty's — the King of England's — subjects, within the bounds and 
upon the coasts of America. It contained no grant of territory, 
and conferred no j urisdiction over the soil ; but only to govern their 
plantation in such a manner as to maintain justice and peace, both 
among themselves and towards all men with whom they should 
have to do ; and reserving to the Earl the power and authority to 
dispose of the government as he chose. 

The charter of 1663 sprung from the king himself. It was not 
only a grant of full pov/ers of government, but a grant of territory, 
bounded and described, with " all the islands and banks in the 
Narragansett Bay, and bordering upon the coast of the tract afore- 
said, (Fisher's Island, only excepted,) together with all firme lands, 
soyles, grounds, havens, i)orts, rivers waters, fHshings, mines royall 
and other mynes, mineralls, precious stones, quarries, woods, 

1. V. Greenleaf's Cruise, 37. 2. II. IJIackstone's Conimcntaries, 347. 



28 

wood gronnds, rock^, slates, and all & singular other commodi- 
ties, jurisdictions, royalties, privileges, franchises, preheminences, 
and hereditaments whatsoever, within the said tract, bounds, 
lands and islands aforesaid, or to them or to any of them belong- 
ing, or in any wise appertaining." 

It would be difficult to frame language more comprehensive, or 
that would more definitely convey all the rights of the crown, 
whether they were jura picblica ov jura jyrivata. Besides, it must 
be remembered this grant w^as made to certain persons therein 
named and appointed, as the Governor and Company of the Eng- 
lish Colony of Rhode Island and Providence Phmtations in New 
England, in America, and coming from all the different towns or 
settlements within the colon}^, and upon their own petition, with 
perpetual succession, and with power to elect their own rulers, to 
admit freemen, to make laws, to establish courts and fix their 
jurisdiction, to impose fines, to inflict punishments, to dispose of 
all matters that relate to purchases of the Indians, and to make war 
by sea, and land ; and all this territory and jurisdiction was granted 
to them and their successors forever, in trust, for the use and 
benefit of the freemen of said colony, their heirs and assigns. It 
was not a grant to private persons, and for private purposes only, 
for them to parcel out the subjects of tlie grant for their own per- 
sonal advantage, but it was a grant of territory and political power 
to a regularly appointed and constituted government, to hold the 
territory and power in trust for the freemen of the colony. It 
was an instrument upon which was to be founded the institutions 
of a great political community. 

Construed in this light, (as certainly it should be,) and without 
commenting, in detail, upon such words in the charter as "soyles, 
grounds, havens, ports, rivers, waters, fishings, jurisdictions, roy- 
alties, privileges, franchises, preheminencies and hereditaments 
whatsover," it seems clear that all the jura regalia or royal rights 
belonging to the crown, including the dominion over and property 
in tide waters, held by the crown as appurtenant to its sovereignty, 
passed to the governor and company of Rhode Island, their sue- 



29 

ccssors and assigns, under the charter of 1063, in trust for the 
public. 

Lest authority shoukl be wanted to sustain this position, your 
committee would cite the opinion of the Supreme Judicial Court 
of Massachusetts, in a recent decision of great vahie and import- 
ance. 

It is well known, perhaps, that the title of the Connnonwealth 
of Massachusetts, to about seventy acres of land below ordinary 
high water mark, in the back bay, near the city of Boston, became, 
a few years since, the subject of a suit between the Commonwealth 
and the towns of Roxbury and West' Roxbury. Chief Justice 
Shaw gave the decision of tlie court in 1858, affirming tlie title of 
the Commonwealth to the lands in question, the value of which it 
is estimated, after l)eing tilled in, v/ill amount to nearly four mil- 
lions of dollars. 

In that decision^ the learned Chief Justice said : — "At the time 
of the settlement of Massachusetts and the other English colonies 
in America, the only source of title to the vacant and unsettled 
lands of this portion of the continent, claimed by the crown of 
England by right of discovery, was a grant from the king. It was 
not merely the only source of legal title to the soil, but the only 
source of authority for exercising limited poNVcrs of government 
in and over the lands thus granted. 

" The theory universally adopted, acted upon and sanctioned by 
a long course of judicial decisions of the highest authority, was, 
that the Indians found ui)on this continent had no legal title to the 
soil, as that term was understood at the common law and among 
civilized nations, no fee in the land, ])ut only a temporary right of 
occupmicy, for which it was, perhaps, equitable to make them some 
allowance. The fee was considered to be in the sovereign, by 
whose subjects it was discovered, and in whose name it was taken 
possession of. Under this rule, this part of North America was 
claimed and held 1)}^ the king of England. This jurisdiction 
extended to all tide waters included in said territory, in the same 

1. Coinuionwealth of Jliissacliusetts vs. Towns of Uo.xbury and West Uoxbury. 



30 

manner as that held by the crown within the realm of England, 
subject to the public use, according to the rules of common law. 
But, as it was held that the king, by virtue of his prerogative, had 
authority to create and grant political powers, necessary to the 
government of these new countries, it was held that, where chart- 
ers were granted to organized bodies with power of governing the 
colonies to be settled, like that of Charles I. to the governor and 
company of Massachusetts, they conveyed the prerogative powers 
of the crown, and as such, included the arms of the sea and all tide 
waters, to be held, like those of the crown, in trust for the public. 
The grantees thereby became invested with the ordinary right of 
property in lands for cultivation and settlement, and the extraor- 
dinary right of government, subject only to their allegiance and 
subordination to the parent government, including herein a power 
over all sea-shores and tide-waters. i 

" Instead of resorting anew to the ori^-inal charters, we will 
state what this court held to be the legal effect of them, in a recent 
case which was muqh discussed, and was decided after much con- 
sideration. ^ The court there say : The charter under which the 
colony was formed and settled — first, that of James I. to the Plym- 
outh company — and subsequently that of Charles I. in 1628, recit- 
ing an assignment of part of the territory formerly granted to the 
Plymouth company, by that company, being ail that part of said 
territory J described, which afterwards constituted the colony of 
Massachusetts, to Sir Henry Roswell and his associates, all the lands 
described and every part and parcel thereof, and all the islands, 
rivers, &c., with the appurtenances. This charter was not merely 
a grant of property, but it contained provisions for the establish- 
ment of a separate government, under the allegiance of the king ; 
and the government thereby constituted Avas invested with all the 
civil and political powers necessary to enable it to establish and 
govern the colony, and to make laws for that purpose, not repug- 
nant to the laws of England. 

" We may add here, in explanation, that the charter provided for 

1. Chapman vs. Kimball, 9 Connecticut Reports, 40. 

2. Commonwealth vs. Alger, 7 Cushiug's Reports, G5, 6G. 



31 

the organization of the company, by the appointment of a governor, 
deputy governor, and eighteen assistants, to be chosen by the 
freemen of the company, after the first appointment made by the 
charter itself. 

"The governor, deputy governor, assistants and freemen, were 
authorized to admit freemen, to elect officers for the ordering, &c., 
and to mtdvc laws and ordinances for the g-ood and welfare of said 
company, and for the government and ordering, disposition and 
management of the said lands and plantation, and the people 
inha])iting and to inhal)it the same, as to them from time to time, 
shall be thought meet, SiV., not rt^pugnant to the laws of Eng- 
land." 

" Most of the English colonies had a similar origin in the charter 
of the sovereign, whi(;h granted not only the title to the soil, but 
the powers of government, and, as incident thereto, the right of 
the sovereign over the sea-shores, and those poAvers denominated 
re(jalia. The nature and extent of these grants, both of property 
and })owers, have been held to be regulated hy the common law 
of Eno-land, which the Eni>:lisli emiiirants claimed as their birth- 
right, and brought with them. This introduced and established 
tlie common law of Eniiland, as rei>ulatina- the relative rights-of 
the government and people in tliis country to the sea and sea- 
shores. The effect of this charter Avas, to grant to the govern- 
ment and company, as a body, the jura regalia, or prerogative 
rights of the crown, to be held for the colony, as the crown held 
them for the realm of England, and also the ordinary right of 
pi'operty in the soil, to be held and granted on the liberal tenure 
of free and common socage, as private rights in real estate are 
held at connnon law.' Tlu; same rnle, sul)stantially, was estab- 
lished in all the colonial governments, the authorities for which, 
we think, are too numerous and uniform to require citation. 

" We have considered it settled beyond controversy, that by the 
common law of England, the right of soil, not only in the sea, the 
fundas marlfi, was in the king, but also in the sea-shore, the land 

1. Martin vs. Waddcll, 10 I'ctiTS (U. S. Sup. Ct.) Ucports, 309. 



32 

between hjob and low water mark, and that, prima facie, the land 
of all private proprietors, towards the sea shore, and upon bays, 
arms of the sea, creeks and coves, where the sea ebbs and flows, 
is bounded by high water mark ; l)iit it having been intimated at 
the argmnent that some new views had recently been advanced on 
this subject in England, we were led to look at the authorities cited. 
The law in this commonwealth seems to be settled by the case 
already cited, of Commonwealth vs. Alger. ^ There it is declared 
that by the common law of England, as it stood long before the 
settlement of this country, the title to flats was in the king, that it 
was 60 held by liim, in trust for public uses. This rule, appar- 
ently so well settled and esta])lished both in England and in this 
country, seems to us not to have been shaken or doubted in any 
recent English case, though some bold speculations may have been 
advanced by ingenious counsel in argument, or by acute essay 
writers in law periodicals." 

"Taking this proposition, in connection with the proposition 
already stated, that the King had full power, in these unsettled 
parts of his dominions, out of the realm of England, to grant a title 
to the land for purposes of settlement, and such powers of gov- 
ernment as might be necessary ; and that a charter was granted, 
vesting the right of soil in the grantees, with very large powers of 
government, including all necessary to the control and manage- 
ment of all public interests, of navigation and fisheries, and of the 
sea shore and navigable waters, the eflect of this charter was, to 
grant to the company both the jus privatum and the Jus publicum 
of the crown ; ilie jus p)rii'atum, or title to the land, to be held in 
fee, parcelled out to corporations and individuals, to be held in fee, 
subject to the rules of the common law, as private property : and 
the jus publicum, or all those rights of the crown in the sea, sea 
shore, bays and arms of the sea, where the tide ebbs and flows, in 
trust for public use of all those who should become inhabitants of 
said territory, and subjects of said government." 

It now becomes necessary to inquire what has been the course 

1. 7 Cusliiiig's Ileports, 65. 



33 

of legislation in the colony or state, aflecting its title to the soil 
under public waters. Has the sovereign power of the colony or 
state, ever asserted its claim to such lands ; has it ever conveyed 
its title to others, or acknowledged it in any other person or 
power ? 

The act of May, 1682, " of certain Indian grants" which has been 
continued in force to the present day, and now comprises the first 
part of chapter 147, of the Revised Statutes, has been relied on as 
a confirmation of the proprietors" })urcliase from the Indians of the 
lands in controversy. The preaml)le of the act gives the reason 
for its passage. 

As the inha])itants of the several towns purchased the lands of 
the native Indians, before the granting of the charter, so that an 
order or direction from the Assembly could notice obtained there- 
in ; and as subsequently to these purchases, in the fifteenth year 
of the reign of Our Royal Sovereign Lord Charles the Second, of 
blessed memory, there was a charter granted to His Majesty's col- 
ony of Rhode Island, dit-., in which was contained many gracious 
privileges granted to the free inhabitants thereof: and amongst 
others, full power and authority to direct, rule and order all mat- 
ters relating to the purchases of lands of the native Indians ; and 
it being thought necessar}' and convenient, for these reasons, that 
the lands of the said towns should be confirmed to the inhabitants 
according to their several rights ; therefore it was enacted, that 
these lands in the towns mentioned, purchased of the Indians, 
should, according to these purchases, be allowed of, ratified and 
confirmed to the pro})rictors of the towns, and to each and every 
proprietor, to have and to liold all said lands in as full, lawful, 
large and am])le manner to all intents, constructions and puri)Oses 
whatsoever, as if said lands had been purchased of the Indians by 
virtue of any grants or allowance obtained from the General 
Assembly, after the granting of the charter. • 

If a clear and perfect title was obtained from the Indians, why 
was any action of the Assembly necessary ? But the preamble of 

1. Laws of Uliode Ishmd, Digest ol' 17-lo, p. -.'O. 



34 

the act states that f<onie action was necessary, and that the })ai'tic- 
ular action needed, was a ^'confirmation " of title. Now Lord Coke 
defines a confirmation of an estate, to be " a conveyance of an 
estate or right in esse, whereby a voidable estate is made sure and 
unavoidable; ov irhere a part ieular estate is increased J Under 
the common law, the crown had not only the title in fee to the 
lands in this colony, but the sole right to extinguish the Indian 
title of possession ; and when the Indian title of possession was 
purchased by the first settlers, the latter obtained only a voidable 
estate, the right to make that purchase, being in the crown. It 
Avas necessary, therefore, that the title obtained from the Indians, 
should be rendered unavoidable ])y confirmation of the sovereign 
power. 

And when the crown conveyed its sovereign powers to the colo- 
nial government, the latter being the people — the purchasers 
themselves — and feeling the insecurity of their individual title, 
added the confirmation of the sovereign power to their title, and 
increased their possessory title, by enacting that all those lands 
should be held in as full a manner, to all intents, as though they 
had been purchased by a grant or allowance of the General 
Assembly, after f/ie yrantiny of the charter. How this act, which 
expressly says that the confirmation of the government was 
''necessary'' to make the Indian grant good, can be construed to 
mean that the confirmation of the government was not necessary, 
but that the Indian title was good without it, it is difficult for 
your committee to see. 

This act of 1682, therefore, in all those cases, where purchases 
Avere made of the Indians before the granting of the charter, ope- 
rated as a grant from the government. And it is by virtue of 
this act, that the title to all lands in the Providence Purchase, 
above ordinary high water mark, was definitely and unalterably 
settled. 

It will be remembered, however, that the grant and confirma- 
tion in the charter of Charles II., was two fold: First, it was a 

1. Houvi«r'« l.aw Dictionary, p. '^68. Coniirmation, §3-:.'. 



35 

grant and confirmation of land bounded and described. Secondly, 
it was a grant of powers of govermnent. The distinction between 
the two, has already been clearly drawn })y a quotation from the 
decision of Chief Justice Shaw. The land was a species of pro- 
perty called the jus privafinn; that is, property which was to l)e 
parcelled out, and conveyed without restriction and for any pur- 
poses, by the colonial government, to become private property, 
to be held in severalty in fee — o\ev which the government could 
have no further power and control, except by its right of eminent 
domain. This species of property, however, did not include land 
covered by the tide waters — that was a difierent kind of property 
— held by the crown by a different tenure, and conveyed in the 
charter by different clauses. 

The transfer of sovereign })ower to this colony, of course carried 
with it whatever was appurtenant to that sovereignty. And we 
have already seen, that not only the title in fee, to lands covered 
Avith tide water, Avas an appurtenance to the; sovereign power ; 
but it was in this way conveyed, and by this means held as a part 
of the sovereign power of the colonial government, and held the 
same as it was hold by the crown, in trust for the public, — subject 
to those common law rights of fishing and navigation ; and that as 
a part of the sovereign power of the King or colony, it could not 
be conveyed, except by express grant — never by construction or 
unnecessary implication. 

Judge Shaw says : " The colonial government stood in two 
relations to its subjects ; first, as owners of the land, to be granted 
to settlers, and purchasers, to be held in severalty in fee ; and 
secondly, as incident to the powers of government, they held a 
j)rerogative right to the sea and sea shores, in a fiduciary relation, 
for the public use. 

"As a general rule, in all grants from the government to the 
subject, the terms of the grant are to be taken most strongl\- 
ao^ainst the grantee, and in favor of the grantor — reversing thi' 
connnon rule as between individuals — on the ground that tlie 
grant is supposed to l)e made at the solicitation of the grantee, 
and the form and terms of the particular instrument of grant pre- 



36 

pared by him, and submitted to the government for their allow- 
ance. 

" But this rule applies a fortiori to a case where such grant by 
a government to individual proprietors is claimed to be not merely 
a conveyance of title to land, but also of a portion of that public 
domain, which the government held in a liduciary relation, for a 
general public use. This rule, with its necessary qualifications, is 
well stated in the opinion of Mr. Chief Justice Taney, in ]\Iartin 
vs. Waddell.i That case is of the highest authority, and directly 
in point, as to the application of the legal maxim. 

"But where a body, like the colonial government, holds two 
distinct powers ; one, for granting and distributing lands to parties 
entitled to settlement in perpetuity, and of which power they are 
in the habitual and constant exercise, as one of the ordinary and 
prominent pur})oses of their establishment, and at the same time 
have a fiduciary interest and authority over the public domain, the 
grant, Avhilst it conveys the land embraced in it, will not be held 
to include any portion of such public right, unless it is included in 
its terms, by express words or necessary implication." 

Appljnng this well settled rule to the statute of 1682, it is evi- 
dent that it contains no express words, and nothing from which a 
necessary implication can l)e drawn, that the prerogative rights 
annexed to the political powers of the government — that is, the 
dominion and propriety in the navigable waters, and the soils 
under them — were granted or confirmed to the purchasers from the 
native Indians. We will only add here the o):)inion of Mr. 
Angell,^ that " no construction of the ratification and confirmation 
of Indian grants," as set forth in the charter of 1 663, "can be 
given consistently with the opinion of the majority of the court in 
Martin vs. Waddell, other than that the grantees should )>e enti- 
tled to the territory granted, agreeably to the common law of 
Enijland ; that is, that their title in the soil extended onlv to hi^'li 
water mark." 

The next act of the legislature, to which the attention of your 

1. 10 Peters (U. S. Sup. Ct.) Repots, 411. t. Augell ou Tide-waters, 51. 



37 

committee has been called, is an act found among the state records 
by the Hon. William R. Staples, and is not found in any printed 
edition of the laws : and it is remarked by Mr. Angell, who cites 
it,' that "it does not appear to have ever been repealed." It was 
passed at the May session of the General Assembly, 1707, and 
provided that each toicii in the colony now established, or that 
may hereafter be established, may be, and have hereby granted 
unto them full poAver and authority to settle such iwm^s, creel's, 
n'uers, icaters, hrniks, bordering upon the respective toAvnships, as 
they shall think tit, for the promoting their several towns and 
townshi})s, by building houses and warehouses, w/icirres, laying 
out lots, or any other improvements, and as by the body of free- 
holders and freemen of each town shall see cause for, or the major 
])art of them for their most benetit. not prejudicing any particular 
person in their property, original grants or purchases upon any 
the aforesaid harbors, coves, creeks, (&c. ; which, we doubt not. 
will much promote the interest of Her iMajesty, ajid the good of 
her subjects in said colony : for the promoting of trade and navi- 
gation." 

If it was ever duly enacted as a law of the colony, it nnist have 
been repealed by the Digest of 17(3(i, which provides (Introductory 
act, p. 4,) "that the said digest and compilation shall l)e con- 
strued, deemed, and taken to contain the only acts, laws, statutes, 
and ordinances of this colony, of a general nature and obligation," 
and at the same tune omits the statute of 1707. above alluded to, 
which was certainly an act of general nature and obligation. 

If it never Avas duly enacted it is still evidence of the claim of 
full power and authority by the state over all the rorp.s-, creek.s, 
rivers, iratera and hanks within its jurisdiction, by its transfer of 
such full powers and authority to the several towns. 

Besides, the purpose of the act is declared to be "for promo- 
ting of trade and navigation," and in order to advance those great 
public interests, the colony authorized the towns to take posses- 
sion of the lands in the coves and creeks, till them up, make lots, 

1. Angell on Tide-wattTS, 237. 



38 

and of course dispose of them, build houses, and make all other 
kinds of improvements that the towns may think for their benefit 
and for the promoting of trade and navigation. Surely, if the 
lands covered by these coves, creeks and harbors, belonged to the 
proprietors and not to the state, we cannot conceive of a grosser 
violation of their rights than this act contemplated. 

The next act of the General Assembl^^ in the order of time, 
known to your committee, atlecting the subject under considera- 
tion, is one that is supposed to relate expressly to the occupation 
and enjojnnent of the thatch beds in the Woonasquatuckct valley. 
As it may not be readily accessible, and is at the same time worthy 
of careful consideration, we insert the entire act. It was i)assed 
at the October Session, A. D. 1804, and is as follows : 

"An Act relative to the depasturing certain marshes, lying on 
Wanasquatucket river, in Providence and North Providence. 
" Whereas the proprietors of the upland and marshes contiguous 
thereto, lying on both sides of Wanasquatucket river, have repre- 
sented to this General Assembly that they experience great incon- 
veniences, and sustain no inconsiderable damage, in consequence 
of some of said proprietors turning in and depasturing horses and 
other cattle on their said marsh, befort; the grass of others is 
mowed (the said marsh not being fenced, and it being very incon- 
venient to fence the same,) and have besought this Assembly to 
provide a suitable remedy by law in this behalf. 

"i?e it fJierefore enacted by the General As,'<emb/y, and by the 
authority thereof it i.s enacted, That it shall not be lawful for any 
proprietor of said marsh, his part thereof not being secured by a 
good and lawful fence, to turn in or depasture, any horse or other 
cattle on his said unfenced part, at any time between the first day 
of May, and the twentieth day of September, in each and every 
year, on the penalty of said cattle or horses being liable to be 
impounded in the same manner as is provided by law in other 
cases, and also of paying two fold the amount of all damages which 
may be sustained, by .any other proprietor of said marsh, by rea- 



39 

son of turning in or depasturing of such cattle or iiorsos, contrary 
to tlie prohibition aforesaid. "i 

This act is susceptible of two constnictions. It may be said to 
recognize the title of the thatch bed })roprietors ; and it may be 
construed as readily to be a claim of title by the state, and an 
exercise of power and control over the premises inconsistent with 
any other title than a title in fee in the state. As to a choice of 
constructions, outside of the terms of the act itself, it is evident 
that if one construction should be in conflict with the uniform 
course of legislation in the colony and state, from the commence- 
ment of its legislative history to the present time, and the other 
construction should be in harmony with the course of legislation, 
the latter construction should certainly be adopted. That the 
action of the colonial legislature already alluded to, and of the 
state legislature, which will subsequently be examined, all show 
a claim of title to land under the public waters, and an exercise 
of sovereign power over them, we think is very apparent; and 
such seems to be the better construction of the act now under con- 
sideration. It cannot be said to be a grant of the soil under, or 
of an easement in the public waters ; for it contains no express 
words of grant, or words from which a necessary implication can 
be draw n, that the state designed to grant or part with any of its 
sovereign rights in the [)ublic waters. It is true the act speaks of 
the " proprietors of the marshes ; " but if the act was based upon 
any proprietorshop in the soil or any proprietorship in an ease- 
ment there, then the General Assembly have actually enacted 
that the owner of private })roperty shall not occupy it, except 
when the General Assembly say so, — that is, the owner of land 
shall not put his cattle on it between the 1st day of Ma}^ and the 
20th day of September, in every year. 

The General Asseral^ly may well provide, as they have done, 
that cattle found at large in the highways or commons, or break- 
ing through lawful fences, may be impounded, and that their own- 
ers shall pay two fold the amount of all damage such cattle may 

1. Schedule of October Session, 1801, p. 1:;;. 



40 

do to others ; but we think that this is the tirst time in the history 
of our state, that the General Assembly have forbidden a man 
from depasturing his own cattle on his own land — that is, assum- 
ing these marshes to be private property. The original petition 
upon which this act was passed, states that the subscribers to it 
were " proprietors of upland on both sides of the Woonasquatucket 
river, from Carpenters point to Clark & Nightingale's Mills, (so 
called,) and also of the marsh thereto adjoining, except a few 
thatch rights l)elonging to the inhabitants living in the adjacent 
country town" — leaving the legislature to make the fair inference 
that the claim or title of the proprietors to the upland and marshes 
contiguous thereto was diiferent and distinct from the title to the 
thatch rights ; and neither the act, preamble or petition alludes 
in terms to the thatch rights at all. Hence it may be doul)ted if 
the General Assembly had the thatch rights under consideration 
at all ; and still further it may be doubted if they meant to grant 
or acknowledge a title to Avhat is not in express terms mentioned 
in the act. Then if the rule of construction already stated, which 
obtains in such cases, is applied, viz. : that in a grant or act of 
the sovereign power for the benetit of the subject, it must be con- 
strued in favor of the grantor, and most strongly against the 
grantee, the act cannot be considered a confession of title in the 
subject, or a grant of soil, or an easement therein, by the state. 

It is probable the attention of the General Assembly was not 
called to the sul)ject of title in these lands. They were, compar- 
atively, of little value ; and persons of considerable influence hav- 
ing petitioned the Assembly for relief from what they termed a 
grievance, the Assembly granted the relief prayed for, without 
considering the law in relation to tide-Avaters, and the interest of 
the state therein, particularly as there was nothing in the petition 
or act to call their attention to it. Your committee have, there- 
fore, concluded that there is nothing in this act that in any way 
atfects the title to the land in question. 

There is a view of this act, in addition to what has already been 
expressed, entertained by a minority of the committee, which such 
minority desire to have embodied in this report ; and that is, that 



41 

while the act of 1804 does not in any way aflect the rights of any 
persons or the state, in the thatch beds in the Woonas(jnatucket 
valley, by way of grant of any title, it is still evidence that the 
General Assembly supposed or thou(jht that certain persons were 
in the possession and enjoyment, in some form, of those marsh 
lands, or of certain privileges therein. 

In October, 1815, ^ the state still further proclaimed and exer- 
cised its power over the tide-waters, and the land covered by the 
same, by authorizing and empowering the town of Providence to 
prevent encroachments or obstructions in the harbors of said town, 
in the Cove above the bridge, and in other public water^^ thereof ; 
and to make such laws, rules and regulations, for the preservation 
of said harbor, cove and waters, as the town should think proper, 
and providing penalties for the violation of any such regulations 
of the town. 

Again, in January, 1837, by an act in addition to the act last 
mentioned, they provided that no person should till out any flat, 
shoal, or piece of land covered with tide-waters at ordinary tides, 
within the limits of the city of Providence, unless they shall, in 
the tirst place, cause a wall to be built on the water line and two 
sides of such tiat, shoal, or piece of land covered with tide- waters, 
and tilled in, as aforesaid, of such compactness, &c., as will pre- 
vent any mud, or other material, from washing througli into the 
harbor, cove, or public waters ; provided the l)oard of aldermen 
of said city shall require said walls to l)e built, &c. ; and [)roviding 
a penalty of not less than $500 or more than $10,000. 

Again, in October, 1841, in addition to the same act, it was 
enacted that, if any person should erect any wharves or l)uildings 
upon any part of the cove, above Weybosset bridge, in the city of 
Providence, outside of present high water mark, or place any 
obstruction in the cove, or other public waters, without permission 
from the board of aldermen, they should be liable to a forfeiture, 
one-half of which was to go to the state. The same act, however, 

1. An Act relating to the harbor and public waters of the town of rrovidcncc, October 
Schedule, 1815, p. 33. 

G 



42 

authorizes and empowers the board of aldermen of said city of 
Providence, to mark out and direct, or permit to be built or 
erected, any wharves, streets, causeways or bridges, around, 
across, or through said cove or other public waters, above Wey- 
bosset bridge, that they may think the public good may require. 

Again, in May, 1845, by another addition to the same act, the 
city council of Providence were authorized to grant, upon such 
terms and conditions as they may deem for the public good, to any 
railroad company, whose railroad terminates in said city, the right 
and privilege of establishing a depot upon any part of the land 
covered by the public waters in said city, above Weybosset bridge, 
and of constructing such wharves, causewa^^s, embankments and 
bridges as may be necessary and proper to contain the buildings 
and accommodations for such depot ; and providing that nothing 
in the act shall be construed to surrender or impair any rights 
which belong to the state, in that part of said land covered by the 
public waters, which said city does not appropriate to the use of 
such railroad companies. 

Under this last act, the streets around the Cove, Canal street, 
Exchange place, and the Cove Park and Promenade were made, 
and the Providence & Worcester railroad depot, and all the roads 
leading thereto, were located and built. 

Several other acts, relating to the harbor and waters of the city 
of Providence, have been passed, which it is not thought necessary 
to cite, all bearing the same testimony, and proving that the Gen- 
eral Asscml)ly of this state, by granting the right to fill into the 
harbors, coves and creeks by appointing the city council of Prov- 
idence a kind of guardian over the cove and public waters, to pre- 
vent encroachments therein ; and by granting the public waters, 
and lands under the same, for railroad purposes, and expressly 
saving the rights of the state in the lands covered by the public 
waters ; all prove a continued claim of title on the part of the 
state, and a continued exercise of its rights. 

The conclusions to which your committee have therefore come, 
are, — 

1st. That all lands below ordinary high water mark, on the 



43 

plat herewith sulmiitted, l)eloiig- to the state in fee, as incident to 
its sovereiiinty, and are held by the state in trust for the public. 
This inckidcs — 

a. That part of the plat colored blue, to repres.ent the tide 
waters, comprising al)out thirty acres. 

b. Also, that part of the })lat colored green, to re})resent the 
growino; thatch on a level, and below ordinary hiah water mark, 
comprising about thirty acres. 

c. Also, that part of the plat colored yellow, representing land 
heretofore below high water mark, but now filled in, excepting 
what lands may have been filled in by the Hartford, Providence 
and Fishkill Railroad Company, by virtue of a grant from the city 
of Providence, under the act of 1845, and excepting what may 
have been filled in by the city of Providence for streets, compris- 
ing about twenty-seven acres. 

Total, about eighty-seven acres. 

If, however, an}'^ portion of the land filled in along the banks of 
the river, as represented on said plat, w^ere so filled in by a rijKi- 
rian owner under the act of 1837, the state would thereby be 
estopped from ever taking possession of the soil. 

2nd. That a claim of title to land covered by tide-waiters, by 
virtue of a grant from the native Indians, is invalid. 

3d. That a possession or enjoyment solely, for any period of 
time, of whatever species of property, held by the state as inci- 
dent to its sovereignty, cannot confer a title on such possessor or 
occupant, as against the state. 

4th. That so long as the state does not interfere with actual 
navigation, they may fill up and occupy said lands. 

5th. That there are no valid claims of any individuals to the 
lands embraced in the act referred to the committee, below ordi- 
nary high water mark. 

(ith. That the passage of the bill would operate as a grant to 
the thatch bed claimants of all the right, title and interest of the 
state therein. 

Your connnittee are fully aware of the extent and complication 
of the questions arising from this subject-matter, and would beg 



44 

leave to suggest to the General Assembly, that if any course could 
be pursued to prevent the great amount of litigation that might 
arise upon the title to these lands, it would be very desirable to 
follow it. The supreme court must be the final resort of all con- 
testants, and if the opinion of that court could be obtained at once 
upon the title and rights of the state in these lands, by directing 
the Attorney General to institute such proceedings in that court 
as would settle all matters relating to the title, it would save a 
vast amount of litigation and expense. It would be desirable, 
also, that the rights of all parties should be settled at an early day, 
that the improvements contemplated in the bill, so valuable and 
necessary, may be soon undertaken and completed, whether they 
are to be undertaken and completed by individuals or by the state. 

All of which is respectfully submitted. 

SULLIVAN BALLOU, 
W. H. S. BAYLEY, 
ARTHUR M. KIMBALL, 
GEO. MANCHESTER, 
WILLIAM A. PIRCE, 

Providence, February 13, 1860. 



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